Raymond Lee Stewart v. Michael Lane, Director, Illinois Department of Corrections and Howard Peters, Warden

previously analyzed by Two as this court in Guadagno.

Velez and application emphasizes,

As the note pretrial

focus be on should statements and However,

conduct defendant. this de probation

fendant’s initial statement to the certainly worthy

officer is of consideration judge’s

and is well within the district discre

tion to sentencing consider the same. This judge could well have concluded from trial, appellant record that even after this impressed appropriately not with the though

seriousness of this crime. Even certainly

district court did not have the Velez

ease available at the time of sentencing, the regard acceptance

decision respon with

sibility teaching. is well within its Else

where, analysis the same has been made.

See, Mitchell, 49 F.3d (D.C.Cir.1995) and United States v. Jan Industries, (10th

us 48 F.3d Cir.

1995).

None of the claims made here this represent and,

defendant reversible error

therefore, the conviction and sentence of this

appellant is now Affekmed.

Raymond STEWART, Lee

Petitioner-Appellant, LANE, Director, Depart-

Michael Illinois Corrections;

ment of and Howard Pe-

ters, Warden, Respondents-Appellees.

No. 93-2586.

United States Court Appeals,

Seventh Circuit.

Argued Nov. 1994.1 July

Decided 1995. originally argued This case panel to this appli- order to determine Simmons's June 1994. On June cability to the instant par- we allowed the - Court decided Simmons v. South ties to submit additional briefs and heard further argument on November Sachs, Chicago, (argued), Joshua IL During sentencing phase of the Kaiser Raymond L. Stewart. government painted pic- similar long ture of Stewart’s and violent criminal Novak, Gen., Atty. Rita Office of M. Chica- history. prosecution argued then go, IL, Zick (argued), J. Steven Office of ... very special, “Stewart is dangerous, he’s Div., Atty. Gen., Appeals IL, Chicago, Crim. desperate escape.” addition, he’s In for P. Lane. Michael following exchange place took during the de- Novak, Atty. Gen., Rita M. Office of Chica- closing argument: fense’s IL, Peters, go, A. for Howard III. Berry [Mr. counsel]: You will be —defense instructed on penalty phase the death and COFFEY, FLAUM, RIPPLE, Before and you will see in one of the instructions that Judges. Circuit you if any find mitigating you factor then may impose a sentence other than the FLAUM, Judge. Circuit death penalty judge proba- and the would 1981, Raymond Lee Stewart was con- bly impose parole. life without victed and sepa- sentenced death in two [Mr. attorney]: Objection, Koski—state’s rate trials for three murders. After unsuc- that improperly states the law. cessfully appealing his convictions and death courts, Objection [The sentences in Court]: Illinois Stewart filed a sustained. The petition corpus for a writ of sentence other pursuant penalty habeas than the death is of § to 28 no jury. U.S.C. 2254. The district concern to court de- this petition. nied Stewart’s We now affirm. The trial court did not jury instruct the Stewart ineligible parole for under Illi-

I. nois law. See 730 (formerly ILCS 5/5-8-1 Ill.Rev.Stat., 38, 1005-8-l(a)(l)(c)). § Ch. Raymond Lee Stewart was convicted and jury sentenced to death for the The murders of sentenced Willie Stewart to death for Fredd, Pearson, Albert and Kevin 27, Kaiser. on January murders Fredd/Pearson 1982, Stewart had two trials: and jury one for the another Fredd him sentenced murders, and Pearson and death for 6, a second for the Kaiser May murder on review, Kaiser murder. This case On direct progressed has Supreme Illinois Court through state and federal affirmed courts for Stewart’s thirteen convictions and sentences. years, 463, descriptions 422, and detailed 104 Ill.2d 85 facts Ill.Dec. 473 N.E.2d (1984) (Kaiser); have been out in opinions 22, set 1227 Stewart’s 105 Ill.2d 85 Ill.Dec. 241, appeals, 22, (1984) direct 241, (Fredd/Pearson). 105 Ill.2d 85 Ill.Dec. 473 N.E.2d 840 (1984) (Fredd/Pearson); 473 N.E.2d The 840 Supreme States 104 Court denied 463, 422, Ill.2d 20, 85 Ill.Dec. review of the May 1985, 473 N.E.2d Kaiser case 1227 (1984) (Kaiser), 1120, 2368, and the 471 105 court’s habe- decision, 20188, (1985), as No. 89 C and 1993 WL May 207807 case on Fredd/Pearson (N.D.Ill. 8,1993). 1131, June We therefore discuss only (1985). the facts relevant to L.Ed.2d this habeas action. Stewart had two bifurcated trials with sen- In each Stewart timely peti filed a tencing hearings jury. before a At sentenc- tion for collateral review under the Illinois ing in murders, pros- Fredd/Pearson Post-Conviction Hearings Act. 725 ILCS argued ecution penalty the death by de- The Circuit Court 5/122-1. denied relief on scribing long history Stewart’s petitions violent both holding evidentiary acts, remorse, his lack and the hearings. absence of The Supreme Illinois Court af any rehabilitation. After emphasizing decisions, firmed these 121 Ill.2d rehabilitation was unlikely, prosecution Ill.Dec. 520 N.E.2d 348 in a argued to the “everything to do in [its] opinion, consolidated eight and months later power to make sure that this defendant the United Supreme again Court de out, get doesn’t be released and kill 900, 109 another nied review. 488 U.S. innocent victim.” (1988) (Kaiser); L.Ed.2d (1988) parole. possibility of The court instructed 102 L.Ed.2d parole reaching not to consider (Fredd/Pearson). a second filed Stewart verdict and stated that it should understand in each case. petition post-conviction imprisonment” and “death the terms “life petitions on these dismissed Circuit Court plain ordinary to have their and sentence” the Illinois May jury shortly re meaning. The thereafter on November these dismissals affirmed plurality A turned a sentence of death. 152 Ill.Dec. 141 Ill.2d Court held “where Again, the United States issue, dangerousness future is at defendant’s certiorari. 502 U.S. Supreme Court denied prohibits law the defendant’s re requires that parole, process due lease corpus petitions filed for habeas sentencing jury be informed that the defen for District Court relief in the United States — at -, parole ineligible.” U.S. dant is 1, May District of Illinois on the Central at 2190. S.Ct. petitions were transferred 1989. These Illinois, ease, District of Western In instant Stewart maintains the Northern post- dangerousness in placed the second set of his future Division. Because the state closing arguments petitions pending, during was still the dis- issue its at both conviction Roszkowski) (Judge sentencing hearings. dismissed Stewart contends that trict court prejudice. instructing petitions without court erred in not habeas the trial Stewart’s ineligible parole proceedings jury of all of the that he was for because After the conclusion law, petitions, only to a post-conviction under Illinois alternative on his second Reinhard) (Judge allowed natural life in death sentence is a sentence of petitions, possibility parole. prison to reinstate his habeas without Stewart 10, Therefore, argues, 1992. On did on November ILCS Stewart which he 5/5—8—1. 1993, requires consolidated to vacate and remand the district court Simmons us June petitions. appeal resentencing. fol- can address the his This for Before we and denied claims, however, we first merits of Stewart’s lowed. whether, Teague light must determine II. Lane, v. 489 U.S. S.Ct. generally forbids L.Ed.2d 334 which in this habeas raises several issues applying rules” of courts from “new federal this appeal, but the central before review, apply we can federal law on habeas prosecutor’s arguments is whether the retroactively In case. Simmons Stewart’s dangerousness, regarding future Stewart’s retroactivity problem, we as- addressing the failure to with the trial court’s combined sume, holding, so that Simmons jury ineligibility on Stewart’s instruct a different result here. would dictate Due rights his under the parole, violated contends that the Process Clause. Stewart A. v. Supreme Court’s decision Simmons — -, U.S. S.Ct. South Teague is a application “The (1994), requires that 129 L.Ed.2d 133 ease.” question in a federal habeas threshold sentence in both cases on we vacate his death — Branch, -, -, U.S. Goeke grounds. these (1995) 1275, 1276, (per L.Ed.2d 152 — Bohlen, U.S. -, curiam); Simmons, Caspari v. argued during the the state -, 953, 127 L.Ed.2d 236 114 S.Ct. trial penalty phase of the defendant’s not entertain the fu- We need consider the defendant’s should however, argue defense, fails to if the State deciding whether to dangerousness ture — Goeke, 115 S.Ct. it. him to The trial court re- sentence death. case, In the instant after the fused, objections, instruct the defense over announced its decision ineligible for Court jury that the defendant was supplemental brief filed his During and after Stewart Carolina law. parole under South application to his deliberations, arguing the trial court Simmons’s asked was a responded that Simmons it the imprisonment carried with State whether life — procedure criminal finally new rule of and therefore Caspari, at -, denied.” Thus, by Teague. barred the State suffi- S.Ct. at 953. We measure the date on ciently preserved Teague argument. which Stewart’s convictions became final the date that the United case announces a new rule if “[A] the Court petitions denied his for certiorari on by precedent existing result was not dictated direct review of his convictions and sen at the time the defendant’s conviction be Penry Lynaugh, tences. See 492 U.S. — at -, Caspari, final.” came 114 314, 2934, 2944, 106 L.Ed.2d 256 (quoting Teague, S.Ct. at 954 489 U.S. at (1989). Stewart’s convictions thus became 1070) (emphasis original); 109 S.Ct. at 20,1985, May 28,1985. final on May See — U.S. -, -, Taylor, Gilmore v. 86 L.Ed.2d 267 (1993); L.Ed.2d 306 (1985) (Kaiser); — Collins, U.S. -, -, Graham v. 113 (1985) (Fredd/Pearson). 86 L.Ed.2d 283 892, 897, (1993); Black, Stringer C. 1130, 1135, 117 As instructed, Caspari recently apply most leading purpose Because the of ha Teague by proceeding in steps. three beas review is to ensure that state courts First, at U.S. S.Ct. at 953. proceedings conduct criminal in accordance determine on the date which Stewart’s con- with the interpreted Constitution as at the victions and sentences Teag- became final for time of proceedings, those “the new rule Second, purposes. ue Id. we must principle reasonable, ... good validates faith “[s]urve[y] legal landscape the as it then interpretations existing precedents of made — existed,” Graham, at -, U.S. 113 S.Ct. by McKellar, state courts.” Butler v. at and determine whether a state court 407, 414, 1212, 1217, U.S. 110 S.Ct. considering Stewart’s claim at the time his (1990). principle “This adheres conviction became final would have felt com good even if interpretations those faith ‘are ” pelled by existing precedent to conclude that shown to contrary be to later decisions.’ requires — Constitution the rule he seeks. Graham, at -, U.S. 113 S.Ct. at 898 — at -, Caspari, 953; U.S. at S.Ct. Butler, (quoting 494 U.S. at 110 S.Ct. at Parks, 484, 488, 110 S.Ct. 1217). Saffle jurists Unless reasonable would have 108 L.Ed.2d Finally, compelled by felt precedent existing at the if we conclude that Stewart seeks the benefit time his convictions became final to rule rule, of a new we must decide whether that favor, Stewart’s we are barred doing from so rule falls within of — excep one the two narrow Graham, at -, now. U.S. 113 S.Ct. at — Caspari, at -, Teague. tions to U.S. 953; Taylor, at -, at U.S. reviewing After the state of the law in S.Ct. at 2113. May, we conclude that sought the rule by recognized by Stewart and the Simmons B. Court, by was not dictated existing prece “A conviction state and sentence be dent. primarily Simmons relies Skipper on purposes come final retroactivity for anal South ysis availability when the appeal direct to Florida, 90 L.Ed.2d 1 and Gardner v. the state courts has been exhausted and the 51 L.Ed.2d 393 filing petition time for a for a writ of certio Stewart cannot benefit from the rule rari elapsed has timely petition or a however, has Skipper;2 been because the Skipper held that a defendant was penalty, denied due only the death it is not the rule of process by the state trial court’s refusal to admit Eddings requires Lockett and that that the de- good evidence prison during of his behavior in opportunity fendant be afforded an to intro- phase penalty capital of his trial. The Court point; duce evidence on this it is also the explained that: process requirement elemental due that a de- prosecution specifically Where the prediction relies on a fendant not be sentenced to death on the basis dangerousness asking of future misleading or the in that ease elev- on a defendant’s its decision Court rendered him; against to right meet the state’s case convictions be- months after Stewart’s en rather, plurality general at rested on Teague, final. came Cf. different, that notion because death is it re- The therefore be- at 1070. compelled by heightened degree procedural a quires comes whether Simmons specifically Skipper, fairness. Id. precedent other than Gardner.3 compel Does Gardner Simmons? The two decisions share common constitutional Gardner, the defendant convicted ground: they address what information degree sentencing The of first murder. requires the to Due Process Clause mitigating circumstances out- found sentencing oppor- at afford defendant weighed aggravating factors recom- And, given tunity deny explain. or court, a The trial mended life sentence. Court’s reliance Gardner however, relying information confidential emerges clearly teachings from the Simmons presentenee report party that neither in the sufficient, This is not Gardner. nexus challenge, no opportunity found had however, to lift over hurdle and sentenced mitigating circumstances by proge- erected elevated The Court va- death. Gardner ny. sentences, holding cated Gardner’s general sup- fact trial had funda- that Gardner lends Florida failed follow procedures required prior port to the im- conclusion reached Simmons mental position penalty. 430 not mean that state courts should have of the death does 1204-05, 1206; a predicted development Id. at Simmons as further (White, J., concurring). jurisprudence. in Due Gardner es- at 1207 Process Florida, principle capital Relying on tablished the broad Proffitt (1976), and the state cannot base a death sentence 238, information to which the defendant had no Georgia, Furman v. 408 U.S. 92 S.Ct. on 2726, (1972), respond. three-justice opportunity a notice and no to The not the plurality judge’s that the trial se- court was concerned with concluded Gardner report; presentence report pro- of confidential the crecy regarding the de- substance the secrecy in constitutionally-guaran- unfairness its alone was nied the defendant cedural rejecting enough to its unconstitutional. procedures. In the state’s render use teed non-disclosure, trial went much further and addressed rationales for the court’s Simmons specific of information the that the Due Process Clause the issue what the Court held person opportunity a “on have to re- not allow the execution of defendant must the does Gardner, Moreover, Simmons, unlike he no the basis information which had but. 362, deny precise narrow opportunity explain.” to or Id. at focused the be at that of information the defendant must type 1207. The Court found present, present, sentencing proce- must to or have the court states administer allowed not, principles they with if do to the in rebuttal. The broad dures an even hand and “subject in thus laid the founda- procedures will be to the de- announced Gardner their holding they high at a in uncon- tion for but are too fects which resulted Sawyer, stitutionality Georgia.” generality compel to it. in Furman v. 430 level Cf. if at at at 2828. “Even at Gardner plurality, addressing agree [petitioner’s] to with assertion situation where we were jury’s ... or con- judge that decisions inform even [the] trial did not follow sentenc- claim, recommendation, govern, analysis his it did or ing not base its decision trol compels opportunity Skipper, which it no to in and it our decision of information had firmed today," - U.S. at -, deny explain. S.Ct. at or says at n. 1 that a its decision is controlled 476 U.S. at 5 n. fact (internal omitted). punctuation holding dispositive prior not or and citations a is conclusive purposes deciding whether the relevant Butler, Teague. Although is that decision a new rule under See the Court in Simmons noted principle at 1217-18. announced in Gardner was reaf- at ''[t]he they compel Gacho, prospective. not followthat the rule that does case Id. own its terms, Id. [petitioner] prohibited seeks.” application to Stewart’s ease. Indeed, precedent existing in 1985 in safely court could reach that a state dicated any Neither nor Gardner other case in Simmons-type opposite an result case. as of 1985 should have enabled state courts Ramos, California predict the result Simmons. There 77 L.Ed.2d Su fore, the principle established Gardner granted preme Court states the exclusive simply general too to enable state courts

right sentencing jury what a determine predict the result in Simmons. Saw Cf. told, must be and Illinois law did not then yer, 497 U.S. at 110 S.Ct. at 2828.4 an such mandate instruction as the one Stew Teague’s Simmons falls within definition of required. art now claims was The Illinois “gradual develop new rules that includes Court, point, unanimous on this ju ments which law over reasonable “[i]t held 1984 that was not error for the may disagree.” rists Id. judge trial instruct that alter penalty imprison native to the death D. ment, explaining imprison without life only statutory ment was the alternative to Finally, because Stewart seeks the benefit Albanese, penalty.” People the death by precedent rule not of a dictated at the 608, 621-22, Ill.2d 79 Ill.Dec. 464 N.E.2d final, time his conviction became “must 219-20 The Illinois decide whether falls the rule within one of years stance four later in Court altered its exceptions the two narrow to the nonretroae- Gacho, People capital which it held that tivity principle.” at -, Caspari, instructed, sentencing juries must be when 953. The first exception to appropriate, if sufficient mitigating fac Teague place includes rules “certain imposition preclude tors exist to of the death of primary, private kinds individual conduct penalty, will the defendant be sentenced to beyond power law-making the criminal imprisonment parole natural life or authority proscribe.” Teague, release. 122 Ill.2d 119 Ill.Dec. (internal punctuation S.Ct. at 1073 Gacho, Yet omitted). Stewart does not contend that this Ramos, recognizing mandate of relied applies exception to his case. entirely in reaching on state law its result. exception, The second which Stewart 119 522 at Id. Ill.Dec. at 1166. issue, does contend encompasses is at before, “wa As we have said state law errors procedure tershed rules of error) implicat criminal (assuming we could construe this as an ing the accuracy fundamental fairness and provide of Tay no basis for relief on habeas. — —lor, Goeke, -, the criminal 2119; proceeding.” at at 113 at U.S. U.S. S.Ct. 1278; McGuire, 67-69, 115 Saffle, S.Ct. at Estelle v. 502 U.S. 494 at U.S. 475, 480, (1991); S.Ct. at 1264. In determining S.Ct. (7th Peters, applies, this exception Thomas v. 48 F.3d whether we ask must Cir.1995). no hint in if the rule understanding There is Gacho that our “alter[s] the requirements process way procedural any of due in com bedrock elements essential to the Moreover, pelled the result. of proceeding.” Sawyer, the Gacho court fairness (internal depart realized that its result would from its at punctua S.Ct. at 2831 omitted). previous position and made of exception the rule tion This is limited to - 2195; might at -, presented We have been with a different Id. U.S. 114 S.Ct. at 2198 ("An case if directing Stewart's convictions had juiy become final the instruction not to consid Supreme Skipper, the Court decided likely prison be er the defendant's conduct in would after arguable compels and, cause it Skipper is that process Skipper, not have satisfied due for reasons, plurality result in Simmons. noted that the the same the instruction issued parole ineligibili refusal to inform the about satisfy pro trial court in this case does not due ty cess.") (citation omitted). "cannot be reconciled with our well-estab timing Given the of precedents interpreting lished Supreme the Due Process Stewart’s convictions and Court deci - U.S. at -, sions, Clause.” question. at we do not visit that instruction, object to cor- failure to or requiring rate core rules observance of the “small prejudicial highly pros- and implicit ... rect a inaccurate that are procedures those of Graham, argument, and his own inaccurate liberty.” ecutorial of concept ordered law. He at -, prejudicial at As the and misstatement argues appeal that counsel on direct also his Teague, “[b]ecause cautioned plurality know, to proce to the Illinois Court failed that such premise from the operate sentencing clarify argue applicable to and an accurate be so central dures would law, leading thus to his waiver these issues guilt, or we be innocence determination of of his the court’s sentences. unlikely many components such and affirmance that lieve it process yet to due have fundamental concedes, As he did not Stewart 313, 109 at 1077. at emerge.” challenge of his the effectiveness counsel denying Stewart cannot conclude We post-conviction or appeal in his first direct parole ineligibili regarding jury instructions appeal; petition or its these contentions were has raised the issue ty after post- during raised Stewart’s second “seriously first dangerousness diminish[ed] future regard petition.5 the inef conviction With obtaining an deter accurate the likelihood claims, counsel assistance of trial fective sentencing proceedings, see mination” his and the Illinois Butler, 416, 110 at or at they unreview properly concluded were of innocence or affected determination judicata. reasons and res able for of waiver Teague, at guilt. See Ill.Dec. 565 N.E.2d at 973. See Accordingly, we find the second 1076-77. his assertions of ineffective assistance As for exception inapplicable. counsel, points to a appellate Stewart change in his counsel as the reason behind III. timely His failure to raise issue. his ar raises several additional Stewart will still result waiver unless Stew failure First, all merit. Stewart guments, default, procedural his shows cause for art apply if do not Sim argues even we resulting alleged from the con prejudice mons, alleged prosecutor’s affirmative Wainwright Sykes, violation. stitutional due the law denied Stewart misstatements of 2506-07, 53 prosecutor’s that the process. He contends (1977); Flannigan, Barnhill L.Ed.2d in the comment Fredd/Pearson Cir.1994). (7th In order 42 F.3d “this jurors must make sure case that prejudice, Stewart must show to establish out,” get an affirma doesn’t defendant merely of his trial creat that the errors “not the law under misstatement of because tive they prejudice, but that possibility of ed a law, ineligible parole. Illinois Stewart disad his and substantial actual worked because, as has these claims waived error vantage, infecting his entire trial with concedes, object argu faded he he of constitutional dimensions.” raise at trial did not this issue ment 1584, 152, 170, 102 Frady, 456 S.Ct. v. U.S. however, maintains, appeal. direct Stewart (1982); v. 1595, Lemons 71 L.Ed.2d 816 the result of ineffective the waiver is that (7th Cir.1995). O’Sullivan, Even 54 F.3d 357 appellate of and counsel. his trial assistance part the of counsel error on unreasonable judgment setting aside the not warrant he received inade- will contends that Stewart proceeding the would sentencing the outcome of counsel at unless representation of quate v. Strickland argues been different. See have appeal. Specifically, Stewart and 668, 691, 104 S.Ct. Washington, 466 U.S. of control- his trial counsel was unaware that (1984); 2066, Flanni 2052, 674 prison in 80 L.Ed.2d mandating life ling law agree with the 42 F.3d at 1078. We imposed, gan, if a were not parole death sentence court Supreme and the district Illinois Court failure to an aceu- by his obtain as evidenced Supreme appeal, Illinois arguments On the Upon presenting second nois law. these in his 107, petition, the court dis- Ill. post-conviction circuit 141 Ill.2d 152 this dismissal. affirmed petition, holding post- (1990). that 286, successive missed 565 968 Dec. petitions permitted under Illi- are not conviction 304 prove petitioner, has failed ineffective and death for the need to be of counsel because he has not particularly circumspect

assistance when as to we shall required prejudice. shown the Teague sponte. invoke sua Finally, separate in argument, a glance, might At first appear this case Supreme Stewart contends that Illinois in be one which we need not confront the apply its rale Court’s decision Gacho of appeal issue state waiver. After this was Stewart, prospectively, and therefore not to submission, under Court decid- arbitrary capricious him was and denied — Simmons v. ed South U.S. Contrary equal protection under law. to -, 2187, 129 L.Ed.2d 133 assertions, courts are entitled to Stewart’s brief, supplemental In its argued state apply refuse to new state court decisions Teague precluded application retroactively. Kentucky, v. Griffith case Simmons this because Simmons set (1987), 708, L.Ed.2d remembered, a forth “new It rale.” must be only requires apply that state courts new however, petitioner came to this federal constitutional rules to defendants court, court,1 indeed the district with a appeal whose cases are on direct at the time jury’s federal claim about the lack of knowl- Thus, Stewart, of the decision. whose case edge parole long ineligibility before the Gacho, was on collateral review the time Supreme Court’s decision in Simmons. It law, a case on the basis of does decided therefore was incumbent on state to raise not fall within the ambit Griffith. defense, Teague rely if upon it wished reasons, foregoing For the district it, much supplemental earlier than in the petition habeas court’s denial Stewart’s is briefing that If followed Simmons. its invo- therefore Affirmed. early stages inadequate, cation at we are indeed with confronted the issue whether RIPPLE, Judge, concurring. Circuit state’s later invocation its redeems earli- notes, Lane, Teague court v. As the 489 er failure to raise the issue. 288, 109 U.S. S.Ct. 103 L.Ed.2d 334 court, “a In its opening is threshold federal brief in a this the state — Branch, simply Teague habeas case.” Goeke v. U.S. noted a footnote that

-, -, dispositive petitioner’s 131 L.Ed.2d claim. Ap- See curiam). (1995) However, (per pellee’s we need Br. at n.5 1. Our case law makes clear, Teague not a if entertain defense the state respect least with to substantive rule, argue issues, fails to it. Id. The that “nonchalant” treatment of an is “grounded although important consider is not sue sufficient to raise the matter. See “ relations,” ‘jur (7th ations of Eddy, federal-state is not United States v. 8 F.3d ” — Cir.1993), denied, Youngblood, -, isdictional.’ Collins v. cert. U.S. 37, 41, 110 (1994); 111 L.Ed.2d S.Ct. 128 L.Ed.2d 379 (1990). Therefore, Berkowitz, correctly (7th as 927 F.2d out, denied, points Cir.), Court has held that cert. may apply Teague federal court decline to If this case law it,

if Caspari the state waived need applied but not. were in an even-handed fashion to — Bohlen, U.S. -, -, footnote, the state’s initial the state would (1994) (citing difficulty 127 L.Ed.2d 236 Schiro have justifying handling indeed -, Farley, however, appears, of the matter. It that a (1994)). jurispru Our stringent governs somewhat less standard yet dence has to develop guiding principles Teague. the state’s invocation The Su ought as to our Teague preme when court to raise Court has instructed that we are to despite employ the failure of the state do so. employs to the standard that it in deter Because, case, capital a Teag- mining question presented invocation of whether a federal ue can often mean sufficiently presented the difference between life to it on certiorari was petitioner specific 1. Because the Teague adequately has raised no whether was raised in the objection court, in this we need not address court. submission, Goeke, later after the advent of at er its to courts. See the state manner, Webb, cures, principled a v. -, (citing at Webb 115 S.Ct. the standard enunciat- earlier defect. Given 451 U.S. by Supreme Court —that the court be (1981)). jurisdiction ed examining own adequately apprised of the nature of the judgment, court review a state rely Teague argument believe that we can “the record as a required that Court has —I At final by on in this case. the time of or clear expressly either show[] whole submission,2 had the state fulfilled its obli- claim was ade- that the federal implication court, it system.” gation and this as took the ease state quately presented in the decision, adequately of the ba- Webb, 496-97, apprised at at 1892. 451 U.S. Teague argument. On this sis of the state’s that the state must demonstrate The record basis, join judgment opinion I or “apprised the nature sub- were courts the court. federal Id. at stance of the claim.” therefore, By analogy, we are at 1894. has a whether the state made determine [the court] effort to “alert

sufficient provide the court

Teague problem” and to a ample opportunity to make reasoned “with —Goeke,

judgment on the issue.” 1276. approach apply the If we Goeke-Webb COMPANY, HEALY S.A. in this only initial the state’s submission Plaintiff-Appellant, adequately the has failed to assert the state petitioner noted in his Teague defense. The v. opening brief Simmons was before METROPOLITAN MILWAUKEE though Even Supreme Court certiorari. DISTRICT, SEWERAGE stated, no “[a]ppellant he is aware of case Defendant-Appellee. decided the consti which a federal has here,” Appellant’s presented tutional issues No. 95-1072. also both Gardner v. Br. at he cited Appeals,.

Florida, 1197, 51 430 U.S. Circuit. Seventh (1977), Skipper South L.Ed.2d 393 1, 106 May Argued 1995. (1986), proposition for the L.Ed.2d July Decided not right to be capital defendant has on the of information he did sentenced basis opportunity

not have the to rebut. case law. Its respond to that federal

did not footnote, Teague argument, in a re

terse Gacho, only People 122 Ill.2d

ferred 287, 522 1146 cert. de

119 Ill.Dec.

nied, an Illinois It based state law. did not

Court decision presentation Mr. Stewart’s a fed

reply to his reliance on Gardner and

eral

Skipper. initial submission was

Because state’s

inadequate, we must face the issue wheth- 37, 41, Teague, but to waive Youngblood, whether state intended Collins Cf. (1990) indicating the doctrine (noting whether invocation of not sufficed). point argument have inquired at that would at oral as to that the

Case Details

Case Name: Raymond Lee Stewart v. Michael Lane, Director, Illinois Department of Corrections and Howard Peters, Warden

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jul 13, 1995

Citation: 60 F.3d 296

Docket Number: 93-2586

Court Abbreviation: 7th Cir.